Public Health Bill

Government Bill

177—2

As reported from the Health Committee

Commentary

Recommendation

The Health Committee has examined the Public Health Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This bill seeks to update existing public health legislation in order to improve, promote, and protect public health, and achieve equitable health outcomes for all the population groups in New Zealand. It would also enable New Zealand to comply with its obligations under the International Health Regulations 2005.

The majority of us believe that the bill provides mechanisms and instruments for timely intervention to protect public health. The majority of us recommend that the bill be passed with the following amendments.

Part One–Preliminary provisions, roles and responsibilities

Purpose of the Act

Clause three sets out the purpose of the Public Health Act, and the provisions designed to achieve it. We do not believe that these provisions recognise some at-risk populations. We recommend the inclusion of a reference to particular vulnerable populations such as children, Pacific peoples, and people with disabilities.

The majority of us recommend that the purpose should recognise that the mechanisms referred to in Part 3 of the New Zealand Public Health and Disability Act 2000 apply when District Health Boards (DHBs) undertake functions under the Public Health Act. These mechanisms enable Māori to contribute to decision-making and participate in the delivery of health and disability services.

Roles and responsibilities

Director-General

We consider that the functions of the Director-General should be broadened to include a requirement to take all reasonable steps to improve, protect and promote public health.

Under the bill the Director-General would be able to issue directions to any person carrying out functions or exercising powers under the Act or any regulations made under the Act. We recommend an amendment to make it clear that the power of direction would relate only to functions and powers that a person had under the Act or regulations. We also recommend that this power of direction could not be delegated to a ministry or DHB employee.

Director of Public Health

We recommend that the Director of Public Health be required to be a medical practitioner who is suitably experienced and qualified in public health medicine. We further recommend that if the Director-General of Health did not have suitable qualifications and experience to exercise the functions of a medical officer of health anywhere in New Zealand, then the Director of Public Health must undertake this role.

Medical officers of health and health protection officers

We recommend that medical officers of health be permitted to exercise powers and duties in any health district adjoining the health district or districts to which they are appointed. We believe that this provision would enable these medical officers to work together to manage incidents such as disease outbreaks.

We also recommend that, in a declared emergency, medical officers of health be able to exercise their powers and duties in the area in which the emergency exists. We recommend an amendment to the effect that one of the functions of medical officers of health is to provide independent advice to the Director of Public Health on matters relating to public health in the health district or districts for which they are responsible. We also recommend that medical officers of health be able to provide advice or reports on urgent or significant public health matters to the board of the DHB that they are employed by, with the agreement of the Director of Public Health.

We recommend an amendment to make it clear that health protection officers must be suitably qualified and experienced, consistent with the requirements for other designated officers such as environmental health officers.

Territorial authorities and environmental health officers

Territorial authorities play a significant role in the protection of public health in our communities. We recommend that the provisions outlining the functions and duties of territorial authorities and environmental health officers be brought into Part 1 of the bill. This would mean that the functions and duties of all significant agencies and individuals were set out in one part of the bill.

We also recommend the insertion of a new provision to recognise the importance of relationships between DHBs, territorial authorities and regional councils, and provide for the development of non-binding protocols.

Part 2–Health information

The bill provides for the disclosure of health information. We recommend an amendment so that the ability of a person to authorise disclosure is based on his or her capacity rather than age. This is consistent with the ability of individuals to consent to health services under the Code of Health and Disability Services Consumers’ Rights 1996.

Notification and reporting of conditions

The bill sets out the notification of conditions, clusters or outbreaks of conditions, and the presence of contaminants. We agree that the anonymous notification of AIDs, HIV, chlamydia, gonorrhoea, and syphilis should be retained and, therefore, we have recommended deleting any requirement to report National Health Index numbers for these cases.

We recommend the inclusion of a consultation requirement on any changes to the lists of notifiable conditions and contaminants, unless an urgent change is called for.

We agreed with submitters’ concerns about the ability of the Director-General to add items to the list of notifiable conditions in urgent situations. We consider that temporary specifications of notifiable conditions should be made only by the Minister, with an expiry period of three months.

We recommend that reference to epidemic diseases be removed from this part of the bill and from Schedule 1, and that amendments be made instead to the Epidemic Preparedness Act, as powers relating to epidemic diseases are referred to only in that Act and not in this bill.

National Cervical Screening Programme

The provisions relating to the National Cervical Screening Programme have been carried forward from the Health Act 1956. We recommend an amendment to require that a hard copy of their own information on the register be provided to women for safekeeping if they cancel their enrolment on the programme.

We recommend an amendment to make it clear that the list of information that must be provided to women by any person providing a colposcopic procedure does not limit any obligation to provide information that arises under any other enactment or rule of law.

Part–Non-communicable diseases

This Part authorises the Director-General to issue non-binding codes of practice and guidelines to address risk factors associated with non-communicable diseases such as cancer, cardio-vascular disease, diabetes, or mental illness. The bill also provides for the making of regulations by the Governor-General by Order in Council to reduce or help reduce risk factors associated with non-communicable diseases.

Three-quarters of the submitters mentioned non-communicable diseases and 40 percent focused on this issue, especially on clause 374 (x). Most of the supportive submissions came from the health sector, researchers, non-governmental organisations, and the sports and recreation sector. Submissions that opposed these measures came mainly from the food industry, and advertising, retail, and media interests. However, a number of them said they would accept a regulation-making power provided that it was explicitly a back-up or last resort provision only.

The majority of us believe it is essential that a major piece of public health legislation address non-communicable diseases which are the major public health issue of our time. We have recommended a number of amendments to address submitters’ concerns in this area.

The majority of us recommend that the regulation making provision, in clause 374, be moved into Part 3 of the bill from Part 8. We recommend amendments so that regulation could be recommended by the Minister of Health only if the Minister were satisfied that a code of practice or guideline that had been in place for at least two years had not made significant progress towards achieving its objective. We recommend a requirement that the Minister be satisfied that progress is more likely to be made by means of regulations than by alternative means. We also recommend that provisions be tightened to require codes of practice to state objectives and targets or measures against which progress could be assessed, and that consultation by the Minister be required if no significant progress in achieving their purpose is apparent. We recommend that the consultation requirement be strengthened so that the Director-General and the Minister must also consult with consumer representatives.

We also recommend an amendment to make it clear that codes of practice, guidelines, or regulations could relate to the content of published or broadcast material only as regards the ways in which goods, substances, or services were advertised, sponsored, or marketed; or the information to be given to consumers in connection with any advertising, sponsorship, or marketing, or on any packaging or labelling.

Part 4–Management of conditions posing health risks

Part 4 provides a framework for the management of conditions which pose public health risks. It is principle-based with a preference for the least restrictive measures needed to achieve the objective of minimising the health risk posed by an individual. We believe that the rights of an individual are appropriately balanced against the rights of the community to be protected. We recommend amending the bill to require that a person must be informed in the way that he or she is most likely to understand.

We recommend an amendment to provide for any court hearings to be held in private, unless the Judge decides it is in the public interest to hold an open hearing. We also recommend that the court may appoint a lawyer to act for individuals under 16.

We recommend an amendment to allow medical officers of health to direct individuals not to attend early childhood centres, as well as other educational institutions.

Part 5–Public health role of territorial authorities

Territorial authorities have extensive powers and duties under the Health Act 1956, principally in relation to environmental health, meaning public health matters related to the physical environment, such as sewage and crematoria. They employ environmental health protection officers to identify and abate nuisances. The bill intends that the same powers and duties should continue, with some minor modifications.

Because territorial authorities have an important role in public health matters we authorised our advisers to consult Local Government New Zealand about issues raised by submitters and any proposed amendments.

The Minister has an important power to direct territorial authorities to do certain things in respect of sanitary services. Some submitters argued that this power cut across the Local Government Act 2002 and could have serious funding implications for Long Term Council Community Plans. We were advised that the power is very infrequently used, and only in rare cases where an authority has seriously neglected its sanitary responsibilities. The majority of us recommend that this power be retained, but that the ability to direct that sanitary services be included in the Long Term Council Community Plan process is removed.

We recommend that the Minister be required to consult a territorial authority on the time within which the authority must submit proposals for the planning and construction of a sanitary service. We also recommend the inclusion of provisions for the Director-General to modify a proposal developed by a territorial authority, or make a proposal should a territorial authority fail to submit one.

Nuisance is defined in clause 166 as an activity or state of affairs that is, or is likely to be, injurious to public health. Many submitters objected to the removal of the word “offensive” from the definition of “nuisance”. We recommend that it be included, but qualified to the effect that an activity or state of affairs would not be offensive unless reasonable persons in the area would regard it as unacceptable.

Certain activities can present a risk to public health. We are recommending amendments to make it clear that a prior statutory determination—such as a resource consent under the Resource Management Act 1991 to carry out a specific activity—would not necessarily preclude action under the Act to mitigate a health risk, while ensuring that consent holders did not have to relitigate matters already addressed when the consent or other statutory determination was granted.

A number of submitters raised concerns about the significant overlap between the bylaw provisions in the bill and the provisions in the Local Government Act 2002 that enable the passing of bylaws to protect, promote, and maintain public health and safety. We agree that it is unnecessary for the bill to include these bylaw provisions, and recommend that they be deleted. However, we consider it important to retain the requirement for territorial authorities to consult DHBs.

Part 6—Regulated activities

Part 6 provides for the use of instruments and mechanisms regarding regulated activities to prevent, reduce, or eliminate risks to public health. It provides for a range of approaches, including consents, and assessment of compliance, depending on the nature of the activity and the extent of the risk.

A number of submitters recommended updating or adding to the list of regulated activities. Some found the inclusion of currently regulated activities in Schedule 3 confusing, and thought this meant that those activities would be immediately subject to the provisions in the bill. We consider that a list of activities is not necessary, as specific regulations would indicate which activities were regulated. We therefore recommend the deletion of Schedule 3.

We recommend the inclusion of an explicit requirement for consultation before the Minister may recommend the making of regulations regarding an activity that poses a health risk.

Subpart 6 requires a consent authority to keep a record of the consents it issues. To protect the privacy of consent holders, we recommend an amendment to clause 235 to remove the requirement for contact details to be recorded and made publicly available. The bill allows consent authorities to appoint assessors to undertake assessments of regulated activities. To avoid confusion we recommend an amendment to make the ability to appoint assessors contingent on empowering regulations and to clarify the jurisdiction of the assessor.

Part 7—Emergencies and border health

General emergency powers

Clause 265 sets out when emergency powers may be exercised by a medical officer of health. We recommend an amendment to clause 266 (1) (j) (ii) to make it clear that a person could be quarantined or isolated, until he or she was no longer a risk to public health, after undergoing preventive treatment such as vaccination.

Redirection of aircraft

We recommend the insertion of a new subclause to require the medical officer of health to ensure that a redirection order would not threaten the safety of a redirected aircraft.

Border health

We recommend an amendment to the definition of “examination involving non-invasive procedures” to make it clear that, for the purposes of examinations conducted for screening at the border only, blood sampling can be regarded as a minimally invasive procedure.

While an individual would retain the right to refuse to provide a blood sample, he or she would be liable to be quarantined while they posed a risk to public health.

Persons liable to quarantine

We recommend an amendment to clause 285 to clarify that a person who has been exposed to a quarantinable condition within its known incubation period before his or her arrival in New Zealand may be liable to quarantine.

Children and people under disability

We recommend that clause 294 be amended to make it clear that the powers in this clause are related to a person’s capacity to understand directions or to provide the necessary information. Those with responsibility for people with reduced or limited capacity, including children, would be required to ensure that those in their care complied with directions under this part.

We also recommend the deletion of the terms “custody” and “under disability” as these terms are not in common usage.

Ship sanitation certificates

We recommend that clause 308 be redrafted to ensure that it aligns with Article 39 and Annex 3 of the International Health Regulations 2005, to which New Zealand is signatory.

Part 8—Miscellaneous provisions

Health impact assessments

We have considered various submissions on the inclusion of provisions regarding health impact assessments in the bill. The majority of us recommend that the purpose of health impact assessments should also include how a proposed action could promote and protect public health.

Powers of entry and inspection

We recommend an amendment to clause 326 to give environmental health officers the powers of entry and inspection in relation to their Part 6 (regulated activities) functions.

Search warrant

We recommend an amendment to the definition of “dwellinghouse” in clause 327, so clause 327 would allow authorised personnel to enter a dwellinghouse or the buildings of a marae with a warrant. A warrant would not be required to enter the land of a dwelling or a marae.

Examination of children

We recommend an amendment to clause 328 (5) (b) to make it clear that children under 16 years are able to consent to examination, testing or screening where they have the capacity to understand the nature and consequences of the examination, testing or screening, and are able to communicate that consent.

Compliance orders

We recommend an amendment to clause 329 (4) (b) to extend the power for an environmental health officer to issue a compliance order regarding his or her Part 6 (regulated activities) functions. Currently such officers have this power only in relation to Part 5 functions. We also recommend an amendment to clause 329 (3) to ensure that a timeframe is specified in the compliance order.

Regulations about public health generally

We heard a range of views on the regulation making powers related to public health set out in clause 374, and in particular subclauses (r) and (x).

We have considered the evidence before us and recommend no substantive change to clause 374 (r). There was concern this clause could be used to regulate things that relate to “lifestyle” diseases such as obesity or diabetes. The clause updates and expands an existing regulation power contained in section 117 (s) of the Health Act 1956, which provides for the regulation of products known to pose a risk to public health, such as heavy metals in graphic materials or nitrosamines in infant feeding teats. We recommend a clarifying amendment to ensure the regulation making power is used only as intended.

The majority of us recommend that the regulation making power in clause 374 (x) be moved to Part 3. We also recommend further amendments in Part 3 to clarify the relationship between non-binding codes of practice or guidelines and the regulations.

Special provisions as to regulations

We recommend an amendment to clause 377 to require the Environmental Risk Management Authority to be consulted regarding manufactured articles that are hazardous or include hazardous substances. We note that the Hazardous Substances and New Organisms Act 1996 enabled the authority to issue standards for manufactured articles that contain, incorporate or include hazardous substances.

Recommendations from the Regulations Review Committee

Clause 88 provides for a review of Part 3 three years after the commencement of the Act, and allows the Governor-General to extend the reporting-back date on one or more occasions. We recommend an amendment to clause 88 to limit the extension of the reporting-back date to no more than two occasions.

Clause 378 allows regulations to be made for transitional purposes as the bill comes into effect, but does not include expiry provisions. We are satisfied that explicit expiry provisions are not needed because these regulations would expire on the date stated in clause 379. This is because their only possible empowering provision (clause 378) would have expired.

We note that the regulations referred to in clause 380 will not be revoked with the expiry of clause 380, and some may have ongoing application under section 20 of the Interpretation Act 1999.

Minor amendments

We recommend a number of minor amendments to clarify the intention of the bill, to address omissions or drafting errors, or to make other improvements.

Health districts

We are aware of a recommendation to review the boundaries of DHBs with regard to iwi boundaries and Māori electoral boundaries, but this is outside the scope of this bill. We understand that some Māori health providers have difficulty providing services to their communities as they have to negotiate with more than one DHB. Some of us believe that this places unfair additional costs upon these providers. To this end, the majority of us urge the Government to give consideration to reviewing the boundaries of district health boards.

New Zealand National minority view

Introduction

The Health Act 1956 would benefit from modernising and updating. However, National Party members of the committee believe that some parts of this Public Health Bill, in the name of protecting public health, unduly interfere with individual rights, and create unnecessary cost and bureaucracy. This ideological agenda creates controversial clauses that have attracted a considerable numbers of submissions.

Forced disclosure of health information

The bill, in requiring disclosure of health information, creates a provision for non-Government health care providers to mandatorily supply information to the Ministry of Health, beyond what, if any, is already voluntarily provided. This has potential to create significant costs for these non-Government providers (such as private hospitals, general practices and Māori health providers) and funders (such as health insurers) without reimbursement. For example, the cost to private hospitals of employing specialist coding staff to supply surgical data by purchase unit or diagnostic related group to the ministry will not be insignificant. The ministry advisers even acknowledged that it may take considerable time for providers to collate requested information.

Providers and funders could be required to provide confidential financial and business information in the name of “advancing health knowledge, health education or health research”.

National Party members believe this is a cavalier attitude to private healthcare businesses and imposes costs which could have little health benefit; costs that will be passed on to patients. We believe that private providers should have input into what information they provide and that they should be able to decline on the basis of significant costs, in a manner similar to provisions under the Official Information Act 1982.

Not-so-voluntary codes of practice

The bill contains provisions that can best be described as venturing into the realm of “nanny state”. The bill proposes that “voluntary” codes of practice may be established by the Director-General to minimise non-communicable disease (eg. obesity) risk factors. These codes can even be established without the cooperation or willingness of the affected sector. The codes can cover product content, accessibility to different parts of the population, advertising, promotion, marketing, sponsorship, and labelling.

These “voluntary” codes can be converted into compulsory regulations—in whole or part—if the Minister of Health decides that the voluntary codes have not worked. National members believe this is regulation by stealth.

Ministry officials advised the committee that codes of practice could cover such things as school lunch boxes, physical activity (whether to travel on public transport or walk), alcohol, advertising of food to children, marketing of infant formula, or transfats.

The Government should have a commitment to working in co-operation with sector groups to make progress. Significant progress has been made working in partnership, for example, with the food industry and television broadcasters over recent years. The Government’s “Portrait of Health” survey of more than 17,000 adults and children found no increase since the 2002/3 survey in obesity rates for children and for Māori adults. And the proportion of adults who are overweight has remained stable at just over 36 per cent.

The bill’s “voluntary” and compulsory guidelines can regulate the way various goods and products are “advertised, sponsored or marketed” (whether directly or indirectly). This has potential to impact on the editorial content of publications and broadcast media. We do not believe the Government amendment in clause 83 (3) addresses this concern.

The current co-operative approach with industry and others is undermined and undervalued by the direct pathway to regulation that this bill proposes. The Government cannot claim the current approach is failing.

Any effective long-term approach to addressing the health implications of lifestyle decisions must respect people’s rights to make their own choices. New Zealanders do not want a Government taking an approach that creates hostility by patronising people about how to live their lives.

Instead, policy should engage people by informing their understanding of the healthy options available to them and the consequence of their lifestyle decisions.

We note that the Government has amended clause 374 (r) which would have allowed the Ministry of Health to control the importation of food that may contribute to non-communicable diseases such as obesity.

Costs to Ratepayers and Consumers

A new form of bureaucracy will be introduced to many businesses —the Public Health Risk Management Plan. These will be required of any person carrying out a so-called regulated activity, such as a hairdresser. These plans must identify the risks to public health that may arise from the activity, identify how those risks will be prevented or minimised, and set out a timetable for how they will be managed.

Every Public Health Risk Management Plan must be submitted to an assessor for approval. The Director-General of Health will maintain a national database of consents granted as a result of a Public Health Risk Management Plan. After all this work an applicant will be given a certificate to display on their wall!

Local Government told the committee that these provisions will apply to low risk businesses, are unnecessary and that the bill is total over-kill in this area. They say this is a duplication of the consent process.

The National Party is concerned that despite consultation, Local Government New Zealand and individual territorial authorities remain concerned about significant features of the bill. It creates powers for the Director-General of Health to over-ride decisions made at territorial authority level related to sanitary services, which has the potential to cut across extensive community planning and consultation. We have been advised this risks a financial cost to ratepayers that is beyond the Local Government Act 2002 intentions. We share the concern of territorial authorities about the ability this creates for central government to foist central government responsibilities, priorities, and therefore costs onto ratepayers.

The National Party members are concerned that Health Impact Assessments—which are voluntary and potentially compulsory in different parts of the bill—are expensive to conduct. There was concern from submitters that should the Director-General of Health create compulsory guidelines that promote wider use of this tool, the cost may fall on territorial authorities and therefore ratepayers. Health Impact Assessments may also be regulated as part of compulsory codes of practice, and this in turn will add costs to consumers.

Treaty Clause

The National Party sees the insertion of a Treaty of Waitangi clause in this part of the bill as unnecessary and inappropriate. The bill already requires authorities to consult and work positively with various communities, including Māori.

Green Party minority view

The Green Party strongly supports provisions in this bill, which will enable the Minister of Health to issue regulations under certain defined circumstances, to reduce the risk associated with non- communicable disease. Given that poor diet is the leading cause of preventable illness and disease, it is vital that we take steps to create an environment which encourages healthy eating in New Zealand. In this context it seems unbalanced that the legislation provides virtually unlimited powers to prevent communicable diseases; but such a tightly constrained capacity to respond to, and seek to prevent, non-communicable diseases.

The Green Party remains concerned that powers in this bill (e.g. 266 (j) (ii)) could allow persons who are unvaccinated and are considered to pose a risk to public health, to be detained indefinitely in quarantine. We do not consider it fair or logical to assume that because a person is not vaccinated, they pose a threat to public health. This is particularly the case since it is accepted that a percentage of persons who are vaccinated do not develop an immunity to the disease they are vaccinated against.

We are concerned that the powers in this bill could be used to discriminate against unvaccinated people, could breach the New Zealand Bill of Rights Act 1990 and could lead to future civil rights violations.

Appendix

Committee process

The Public Health Bill was referred to the committee on 11 December 2007. Public submissions were called for with a closing date of 7 March 2008. We received and considered 204 submissions from interested groups and individuals. We heard 96 submissions, which included holding hearings in Auckland.

We received advice from the Ministry of Health.

Committee membership

Sue Kedgley (Chairperson)

Lesley Soper (Deputy Chairperson)

Dr Jackie Blue

Dr Jonathan Coleman

Jo Goodhew

Hon Luamanuvao Winnie Laban

Jill Pettis

Hon Tony Ryall

Barbara Stewart

Hon Tariana Turia

Louisa Wall

Key to symbols used

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